BRIEF FOR APPELLANT: Kathryn Burke Prestonsburg, Kentucky BRIEF FOR APPELLEE: Dinah Lynn Bowling Hindman, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOTT CIRCUIT FAMILY COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 16-CI-00291 OPINION
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BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES. JOHNSON, JUDGE: This is an appeal from an order of the Knott Family Court granting de facto custodian status to the paternal grandmother of a minor child. Our review of the record, in conjunction with applicable legal precedent, convinces us that we lack jurisdiction to consider the issues presented. Accordingly, we dismiss this appeal.
Jessica Lucas ("mother') and Raymond Steven Baker ("father") are the parents of a minor child born June 7, 2013. Appellee Melissa Martin ("grandmother") is the child's paternal grandmother. At the time of the child's birth, both mother and father lived together with grandmother in her home. Sometime in March 2015, mother and father separated and mother moved out of the home. Father, however, continued to live in the home with the child and grandmother. Over the course of the next two years, mother watched the child occasionally when grandmother requested it.
On October 14, 2016, grandmother filed a petition to be declared the child's de facto custodian. Subsequently, mother filed a motion and affidavit for temporary custody and grandmother responded by filing a motion for temporary custody. Grandmother also renewed her motion to be declared the child's de facto custodian. Father filed an entry of appearance and waived any rights he might have in the proceedings. In waiving his rights, father stated that grandmother should be declared the de facto custodian of his minor child. On April 17, 2017, the family court held a two-day hearing and ordered all parties to submit memoranda.
According to testimony at the April 2017 hearing, it was grandmother who routinely fed the child, bathed the child, sought medical attention when needed for the child, and was responsible for the child's education. In addition, grandmother bore all the financial responsibility for the child, with no contribution from either mother or father. Father testified at the hearing, stating that while he resided with the child in grandmother's home, he did not assume a parenting role for the child and only looked after the child on occasion when preschool was canceled.
On April 24, 2017, the family court issued an order stating it would set a custody hearing, if necessary, after ruling on grandmother's motion seeking de facto custodian status. On May 22, 2017, the family court issued a very brief order, declaring grandmother to be the child's de facto custodian. Mother moved the family court to alter, amend or vacate its order and filed a Kentucky Rules of Civil Procedure ("CR") 52.04 motion for more specific findings. On August 7, 2017, the family court issued an order with additional findings, again holding that grandmother was the child's de facto custodian.
This appeal followed.
STANDARD OF REVIEW
CR 54.01 provides in pertinent part that "[a] final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02." In Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978), the Supreme Court of Kentucky emphasized that if an order is by its very nature interlocutory, even the recital of the CR 54.02 finality language cannot make the order appealable. Finally, this court will, on its own motion, raise the issue of want of jurisdiction if the order appealed from lacks finality. Francis v. Crounse Corp., 98 S.W.3d 62, 64 (Ky. App. 2002) (citing Huff v. Wood Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970)).
Although the parties have not raised the issue of our jurisdiction to review the order in this appeal, we raise it on our own because we are persuaded that the order lacks finality. Kentucky Revised Statutes ("KRS") 22A.020(1) limits the jurisdiction of this Court to appeals from final judgments, orders, or decrees of circuit courts (including family courts).
The order from which mother seeks relief is an order which merely grants de facto custodian status to grandmother. An order granting de facto custodian status does not strip "a party of a right in such a manner as to remove from the court the power to return the parties to their original condition." Druen v. Miller, 357 S.W.3d 547, 549 (Ky. App. 2011) (citation omitted). When the family court entered the order, which is the subject of this appeal, both parties had pending motions seeking permanent custody of the child. The Court in Druen held a similar order inherently interlocutory because it did not "determine the issue of custody of the minor child and, therefore, is not final since it did not adjudicate all the rights of the parties." Id.
Furthermore, while we note that the family court did not include the CR 54.02 recitations in its order, we are persuaded that the inclusion of those findings would not have changed the result. As previously stated, orders which are by their very nature interlocutory cannot be made final under CR 54.02. Because well-established caselaw instructs that an order granting a party de facto custodian status is inherently interlocutory, this Court simply lacks jurisdiction to review the grant of de facto custodian status to grandmother at this time. Upon the entry of a final judgment concerning the custody of this child, if she is aggrieved by the decision, mother can raise the issue of grandmother's status in a proper appeal at that point in the proceedings.
Because we are without authority to consider this appeal, it must be DISMISSED.
ALL CONCUR. BRIEF FOR APPELLANT: Kathryn Burke
Prestonsburg, Kentucky BRIEF FOR APPELLEE: Dinah Lynn Bowling